Practitioners’ Consultation Forums
11 November & 1 – 3 December 2015
Justice Jessup & Justice Buchanan
National Coordinating Judges
Employment and Industrial Relations NPA

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
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Overview of the National
Court Framework
Objectives
Key features
National Practice Areas &
Sub-Areas
 Employment & Industrial
Relations National Practice
Area
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Jurisdiction
NPA Judges
Filing Overview
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Draft Practice Notes (PN)
Central Practice Note – National
Court Framework & Case
Management
Employment and Industrial
Relations NPA Practice Note

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 The NCF is one of the most fundamental reforms of the Court since its inception
 The NCF has four main goals, to:
organise and manage nationally the whole of the Court’s work by reference to the great subject matter areas of the Court’s work
organise the Court’s resources to meet the demands of the broad range of work undertaken by the Court
develop the confidence of the profession and the community, particularly in areas requiring a degree of specialised skill and knowledge
broaden the base of judicial knowledge and experience of the
Court

Court
Structure
 Docket system remains
 Consistency through centralised allocations
 Dedicated groups of
Judges receiving matters in their NPAs
 Character of the matter guiding the allocation
Practice
Allocation &
Procedure
 National approach
 Eight National Practice
Areas (NPA)
 National and Registry
Coordinating NPA Judges
 Dedicated NPA Judges
 Nationally consistent
Registry arrangements
 Move from process-driven case management to flexible
& tailored case management
 Nationally consistent and simplified practice
 New Practice Notes – Central,
NPA and general
 National Duty systems
 Consistent Corporations Lists
 Timely & managed judgment delivery
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 Move from a state-based structure to subject-based structure
 Court’s work organised and managed nationally by reference to subject matter areas – National Practice Areas and Sub-Areas

National Coordinating Judges(+):
 Justice Jessup
 Justice Buchanan
Registry Coordinating Judges (*):
 NSW/ACT :
Justice Buchanan
Justice Katzmann
 VIC/TAS:
Justice North
Justice Bromberg
 QLD
Justice Collier
Justice Rangiah
 SA
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Justice White
 WA
Justice Gilmour
NSW & ACT
VIC & TAS
QLD
SA
Wa
Rares J
Buchanan J+*
Flick J
Perram J
Katzmann J*
Wigney J
North J*
Jessup J+
Tracey J
Bromberg J*
Pagone J
Mortimer J
Collier J*
Logan J
Reeves J
Rangiah J*
Mansfield J
Besanko J
White J*
Siopis J
Gilmour J*
Barker J

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 Matters arising solely under any of the following Acts is to be commenced in the Fair Work Division of the Court:
Fair Work Act 2009 (Cth)
Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act
2009 (Cth)
Workplace Relations Act 1996 (Cth) as it may continue to apply because of the Fair Work (Transitional Provisions and Consequential Amendments)
Act 2009 (Cth) or
Building and Construction Industry Improvement Act 2005 (Cth);
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 All other matters are to be commenced in the General Division of the Court

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 Subject to questions of judgment, the following matters fall within this
NPA:
‐ matters involving the exercise of jurisdiction under the Fair Work
Act 2009 (Cth); the Fair Work (Registered Organisations) Act 2009
(Cth) and the Fair Work (Building Industry) Act 2012 (Cth)
‐ matters where the issues relate to the conduct of an employer/employee or the conduct of any association of employers/employees or their officers/members in that capacity: o arising under the Competition and Consumer Act 2010 (Cth) boycotts, conduct of employee organisations, prohibited arrangements for goods and services or misleading conduct o arising under any anti-discrimination legislation or regulation of the Commonwealth or State

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‐ matters under the: o Public Service Act 1999 (Cth) or regulation o Independent Contractors Act 2006 (Cth) o Safety, Rehabilitation and Compensation Act 1988 (Cth), including appeals under s 44 of the Administrative Appeals Tribunal Act 1976
(Cth)
‐ matters within the Court’s jurisdiction under s 273A of the Workplace
Health and Safely Act 2011 (Cth), whether or not that jurisdiction is brought in the Fair Work Division
‐ employment-related matters involving an administrative decision of a person holding office under a Commonwealth Act

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‐ matters where relief is claimed in the nature of a constitutional writ under s 39B of the Judiciary Act 1903 (Cth) against the Fair Work Commission
‐ employment related matters involving appeals or referrals from the
Administrative Appeals Tribunal
‐ matters arising under a contract of employment or involving rights, entitlements or obligations of any employer or employee
‐ any other proceeding the character of which is substantially employment or industrial relations

 The draft Central Practice Note sets out fundamental principles concerning the NCF, together with the key principles of case management procedure including:
Docket system
Allocation Principles
Urgent originating applications
Injunctions and undertakings
Commencing Proceedings
Overarching Purpose
Case Management
Alternative Dispute Resolution -
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Discovery
Evidence & Witnesses
Further interlocutory steps
Pre-Trial Case Management
Hearing
Communication with Chambers
Judgment
Costs
 All other practice notes to be read within the framework established in
Central Practice Note.
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 Individual docket system - introduced in 1997 & remains as part of the
NCF
 Matters allocated to the docket of a particular judge at or about the time of filing and will remain with that judge for case management and disposition
 When filing, parties select a relevant NPA and sub-area. The Court may identify and change the NPA and/or sub-area if it identifies the dominant character of the matter to be different from the NPA selected
 The matter will then be allocated to a Judge in the NPA
 Matters are allocated on rotation to judges in the NPA and sub-area in the registry of filing, subject to:
availability of Judges in the NPA in the registry of filing
considerations of balance of workload and commitments of judges and
in rare circumstances character of the matter
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Draft Central PN - Urgent Applications
 Urgent Originating Applications
‘Direct to chambers’ duty mechanism except for self-represented litigants
Different duty procedures depending on the type of matter: o Commercial and Corporations NPA Duty System o National General Duty System for all other NPAs
Duty Judge contact information is updated on the Daily Court List
 Urgent (and non-urgent) Interlocutory Applications
Should be brought to the docket judge’s attention who is responsible for the case management of the matter
If the docket judge is unavailable then it should be brought to the attention of the relevant Duty Judge or NPA Coordinating Judge
 Injunctions & Undertakings
Special consideration, particularly ex parte injunctions & undertakings given to the Court as to damages when interlocutory orders are made
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Draft Central PN - Case Management Objectives
 Ensure the most appropriate & effective case management is adopted
 Key objectives:
reduce costs and delay so there are fewer issues in contest
of those issues, to ensure there is no greater factual investigation than justice requires
as few interlocutory applications as necessary for just and efficient disposition of the matter
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Draft Central PN - Commencing Proceedings
 At the time of filing, parties will be able to seek an expedited or truncated hearing process and tailored or concise pleading processes. For example -
Concise Statements:
statements filed with the originating application
no further originating material is required to be filed until ordered
used to bring the key issues & facts, primary legal grounds and essential relief sought
no longer than 5 pages
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Draft Central PN - Case Management Hearings
 First case management hearing is integral to case management
 Aim is to identify the issues at the earliest possible stage
 For the first case management hearing, parties should consider:
most appropriate efficient preparation and steps required i.e. o discovery o evidence o method of trial
possibility of listing the matter for hearing (where possible within 6 months of the case management hearing)
Available dispute resolution options including mediation
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Case Management Imperatives

Draft Central PN - Alternative Dispute Resolution
 The Court expects parties will always consider / seek an early resolution of matters utilising the broad range of ADR options available, including mediation
s53A Federal Court Act and Part 28 Federal Court Rules
 The Court expects parties to be informed about ADR processes and when attending mediation:
participating in good faith negotiations meaningfully
narrowing the issues and / or
reaching mutually acceptable resolution
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Draft Central PN - Discovery
 Discovery can be burdensome and costly. The Court expects parties:
to minimise its burden
have discussed discovery and agreed on a protocol for discovery prior to a request being made
 Commercial & Corporations NPA Practice note sets out two discovery techniques that may also be useful in all NPAs:
1.
Redfern Discovery Procedure
Parties collaboratively prepare a schedule, supervised by the Court
it is an expeditious process that takes account of the financial and operational burden of litigation
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2.
Memorial Procedure – for discovery and evidence
A request to use this procedure should be made in the concise statement or any stage prior to filing a substantive statement of claim
Early in the proceeding, parties file their pleading-related material together with key documents & evidence in one consolidated process

Draft Central PN - Evidence & Witnesses
 Parties should:
consider and confer about managing evidence in the most effective, efficient and economical way
consider how to best lead evidence: written v oral
focus on providing sufficiently relevant evidence
avoid unnecessary or prolix affidavits, when using written evidence
 The Court supports the use of innovative tools to manage evidence including:
Statements of agreed & disputed facts
Joint reports and concurrent expert evidence
Organisation of evidence into discrete components
 Parties should limit the number of witnesses they rely on to the minimum necessary to prove / disprove the issues in dispute
 Expert Evidence and Survey Evidence practice notes are currently being developed. It is important that parties be familiar with the requirements and information set out in these practice notes
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 Interlocutory steps should be kept to minimum and wherever possible these matters will be dealt with ‘on the papers’
 The Court expects parties will have conferred in good faith prior to listing an interlocutory dispute
 Parties should consider the use of Court registrars for mediations or confidential conferences over interlocutory disputes
 If there is a dispute of substance, the Court will usually set a timetable for the filing and service of supporting material & written submissions
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 Generally held 3 weeks prior to the scheduled trial date
 Opportunity to deal with any outstanding matters before the start of the trial
 Parties expected to have conferred prior to any Pre-trial Case Management
Hearing to identify and agree on the most efficient trial process. Proposed orders should be forwarded to the docket judge prior to the hearing
 Parties are expected to be able to properly address the below issues at the
Pre-trial Case Management Hearing
all ADR processes have been exhausted to resolve the dispute
all interlocutory steps are concluded
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how to best manage the trial including: accurate estimate of length; order and timing of witnesses; any special requirements for witnesses

 Written submissions are a very useful way to shorten addresses in both final and interlocutory hearings, provided they are prepared well
 Written submissions should be prepare by the advocate who will address the
Court and not the supporting lawyers
Draft
PN - Judgment
 The Court aims to deliver judgment as soon as is reasonably practicable
 In the ordinary course (& subject to the size & complexity of the matter) the
Court will endeavor to deliver judgment resolving the substantive dispute within 3 months of the receipt of the final submissions
 If a judgment is not forthcoming within 6 months, the Court will inform the parties of the anticipated time for delivery of the judgment
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 All the Practice Notes are to be read in conjunction with the draft Central
Practice Note
 Certain matters are largely dealt with by the draft Central Practice Note including: Urgent matters; ADR; Discovery and Pre-Trial Hearings
 New NPA Practice Notes will contain flexible procedures for the commencement of proceedings or filing of tailored pleading material relevant to that NPA & any flexible procedure set out in the Practice Note of one NPA may be applied to any other NPA
 Key elements of the Employment and Industrial Relations NPA Practice Note:
Overview
Commencing Proceedings
Case Management
The Trial
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 Incorporates proceedings that are substantially of a character of employment and industrial relations
 The nature of the matter may involve a question of judgment – for example:
A matter involving alleged discrimination in connection with employment may be a Administrative and Constitutional Law and Human Rights NPA matter or an Employment & Industrial Relations matter
A matter involving provisions s 45D, 45DA, 45DC, 45DD, 45E , 45EA, 45EB and s31 of Schedule 2 of the Competition and Consumer Act 2010 (Cth): may be a Commercial & Corporations NPA matter or an Employment &
Industrial Relations NPA matter
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 Subject to the Central Practice Note, an originating application must be accompanied by a statement of claim or affidavit
 where commenced on a statement of claim:
defence must be filed within 28 days (r 16.32)
any reply filed within a further 14 days (r 16.33)
 where commenced on affidavit:
affidavit is treated as a statement of the applicant’s factual case
Court assumes the applicant is content to have the trial measured against the facts set out in the affidavit
 if the respondent files an affidavit in reply
treated as a statement of the respondent’s factual case in the proceeding
Court assumes the respondent is content to have the trial measured against the responses and facts set out in the respondent’s affidavit
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 Where a respondent does not file an affidavit, the Court will assume that the respondent is content to have defence measured against the facts in the applicant’s affidavit
 In the normal course, the respondent to file an affidavit within 28 days after the date of service of the originating application
 For s39B Judiciary Act matters against the Fair Work Commission:
each party bringing the application shall be named as the First Applicant,
Second Applicant and so on
Each of the other parties to the proceeding should be named as First
Respondent, Second Respondent and so on
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the Fair Work Commission shall be named as the last respondent. The names of the President, Vice Presidents, Deputy Presidents, Commissioners,
Members or persons holding delegations should not appear in the title of the proceeding

 Where relief is claimed against the Fair Work Commission under s 39B of the
Judiciary Act or s 563(b) of the Fair Work Act the application will be reviewed by the National Appeals Coordinating Judge, National Appeals Registrar and
Chief Justice to decide whether a single judge or a Full Court should hear the matter
 To facilitate this review, when such an application is filed, the applicant should in addition to an affidavit(s) in support, file a statement as to:
what the error is that is said to give rise to relief under s 39B or s 563(b)
whether, and if so why, the application should or should not be heard by a
Full Court
if a degree of expedition is required, clearly state that fact and the reasons for expedition
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 After the close of pleadings or expiration of time for filing the respondent’s affidavit, the Court will list the proceeding for a case management hearing
 In the normal case, the Court assumes that other than any necessary pre-trial hearing, after the first case management hearing, further directions / case management hearings will not be required
 Parties are expected to give attention to a number of matters at the case management hearing, which are set out in the draft practice note
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 To the extent the matter involves a question of fact, the Court:
will usually expect evidence-in-chief to be led orally
will not necessarily accept an agreement reached by the parties to the contrary – s47(5) Federal Court Act
 To the extent that evidence is given orally, the parties will be expected to:
exchange (but not file) an outline of proposed evidence to be given by each chief witness no less than 14 days before the final hearing.
subject to leave of the Court, these statements will not be the subject of cross examination or tendered as a prior statement of the witness
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